278 A.D. 998 | N.Y. App. Div. | 1951
Appeal by defendant from an order of Broome County Court, striking out his answer and granting summary judgment to the plaintiff, and from the judgment entered thereon. The parties were formerly husband and wife. Plaintiff wife has obtained a divorce from the defendant and has custody of the two children of the marriage. Essentially the complaint alleges that during a period of time when the divorce decree made no provision for the support of the children, plaintiff provided necessities for them and seeks to recover therefor from the defendant. The verified answer is essentially a general denial. Upon the motion for summary judgment the plaintiff presented her own affidavit, unsupported and uncorroborated, hut no other evidence as to the alleged expenditures. She also presented the affidavit of an employee of the Broome County Children’s Court which in no way corroborates such expenditures, or any facts which plaintiff must establish to recover. Essentially there was nothing before the court upon this motion except the plaintiff’s naked assertion of her claim and the defendant’s naked denial thereof. Under such circumstances summary judgment was improper, and the issues must be determined by trial. Order and judgment reversed on the law and facts and the matter remitted to Broome County Court for further proceedings, without costs. Foster, P. J., Heffernan, Brewster, Deyo and Coon, JJ., concur.
